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RANGE OPERATOR LIABILITY: NOISE, NUISANCE AND ZONING

RANGE
OPERATOR LIABILITY: NOISE, NUISANCE AND ZONING

Michael K McCabe

(This
article is reprinted from the First National Shooting Range Symposium,
1990 with permission from International Association of Fish and Wildlife
Agencies, Wildlife Management Institute and U.S. Fish and Wildlife Service.)

INTRODUCTION

With the expansion
of suburbia and second homes in rural settings, in recent years some shooting
ranges have become the unwelcome center of attention in their local community.
Factors such as zoning requirements inconsistent with shooting ranges,
and noise from shooting ranges, have caused the majority of complaints.
These complaints, for the most part, come from neighbors or neighborhood
associations whose members live in the vicinity of the shooting ranges,
or from town zoning boards.

Overview of Zoning
Law

In order to
fully understand zoning law as it applies to shooting ranges, it is necessary
to first give an overview of zoning law as it exists in the United States.
Zoning is enacted and enforced under what is commonly called the "police
power". This expression does not limit itself to those in police
uniform but, on the contrary, it has a much broader and wider significance.
The term "police power" embraces virtually all of the functioning
governmental rights of states and their political subdivisions. It might
well be expressed as the "community power".

Within the
police power is embraced the right to provide for the public safety, health
and welfare, including supplying water to the public, the construction
and regulation of streets and highways, the establishment and maintenance
of police and fire departments, the construction and operation of sewers,
the regulation of land use, the establishment of hospitals and health
regulations and, indeed, the innumerable branches through which a government
carries on most of its required operations.

Most commonly,
zoning control is given from the states to the lower levels of government
for enforcement. This is usually accomplished by state constitutional
provisions or state statutes that confer limited components of police
authority to inferior units of government. Therefore we have counties,
cities and towns that may also exercise the "police power" through
zoning authority conferred by state law.

Constitutional Issues

The Fifth Amendment
to the U.S. Constitution provides that "private property shall not
be taken for public use, without just compensation." Most state constitutions
also contain "taking" clauses, and the Fourteenth Amendment
makes the federal taking clause applicable to the states. Such clauses
raise the all-important taking issue in land use regulation. Local governments
enact land use regulations under their police power, which does not require
the payment of compensation. When a land use regulation excessively restricts
the use of land without compensation, the restricted landowner can, at
least theoretically, argue that a taking of his land without compensation
has occurred. If the position that the land use regulation violates the
taking clause is judicially sustained, the law requires compensation for
the taking for the period of time the regulation was in effect.

For at least
20 years prior to 1987, the Supreme Court tended to approve a broad variety
of government regulations as legitimate exercises of the police power.
When reviewing decisions prior to this time, be reminded that the Court
took a new and rather unexpected turn in 1987.

In Nollan v.
California Coastal Commission, (483 U.S. 825 (1987) the California Coastal
Commission had imposed as a condition to approval of a rebuilding permit,
the requirement that the owners provide lateral access for the public
to pass across their property. The U.S. Supreme Court ruled such a condition
was not a valid regulation of land use but an "out and out plan of
extortion." Justice Scalia's majority opinion held that unless a
land-use restriction placed on a property "substantially furthers"
permissible ends, the regulation will be considered a taking for which
compensation must be made.

Structure of Zoning
Ordinances

Typical of
county or municipal zoning ordinances comprehensively assign compatible
land uses to zoning districts throughout the community. The zoning ordnance
contains a text and a map. The map designates the location of zoning districts.
The text contains use, density and site development regulations for land
use permitted in each district. It also contains administrative and enforcement
provisions. The comprehensive zoning ordinance satisfies this land use
structure. It divides the municipality into a number of zoning districts
that separate residential, commercial and industrial uses.

However, there
are detailed led special exceptions in which one may use property in a
way that does not conform with the zoning plan. The first of these is
the pre-existing non-conforming use (sometimes referred to as "grandfather"
status). The nonconforming use is a difficult problem in zoning administration.
The mixed land use pattern that exists in built-up cities means that some
uses will not conform to newly adopted or amended zoning ordinances. These
uses will thus be entitled to exist; however, a change, expansion, repair,
or reconstruction typically results in the forfeiture of the non-conforming
use status.

In the case
of Prevost v. Township of Macomb, 6 Mich. App. 462, 149 N.W.2d 453 (1967),
the owner of a gun club wanted to expand his building to include a new
rifle range. The court denied this because the gun club was a pre-existing
nonconforming use. To change or alter its use would be in violation of
the law, as it would be a different use than that originally allowed.

The second
exception to a zoning plan is called a conditional use. The zoning board
grants a "conditional use" permit, which is usually quite specific.
A zoning board will typically authorize the approval of a conditional
use only if it is compatible with the surrounding area. Violation of any
of the conditions would result in a loss of the permit. Such was the case
in Town of Richmond v. Murdock, 70 Wisc.2d 642, 235 N.W.2d 497 (1975),
where the owner of a shooting range was only allowed to use two of his
five trap fields. However, he violated these conditions by using all five
of the fields, thus voiding his permit to operate the shooting range entirely.

A permitted
conditional use is not always appropriate; a problem is that some zoning
boards insist on conditional zoning permits in circumstances where the
ordinance is sufficiently broad to permit the use. In Town of Carmel v.
Willow Wood Rifle & Pistol Club, Inc., 496 NYS 548, 115 A.D.2d 742
(1985), the court ruled that the restrictive interpretation of the zoning
law imposed by the zoning board was so arbitrary and capricious that they
had to be struck down.

The third exception
to the zoning plan is the variance. The provision that most states have
adopted reads: "To authorize upon appeal in specific cases such variance
from the terms of the ordinance as will not be contrary to the public
interest, where owing to special conditions, a literal enforcement of
the provisions of the ordinance will result in unnecessary hardship, and
so that the spirit of the ordinance shall be observed and substantial
justice done."

This provision
authorizes a hardship variance. About 1/2 of the states also authorize
a variance because of "practical difficulties", a standard applied
principally to area variances. The variance and conditional use have a
tendency to be confused, but the distinction should be clear. "A
variance is an authority to a property owner to use property in a manner
forbidden by the ordinance while a conditional use allows the property
owner to put his property to a use expressly permitted by the ordinance."
North Shore Steak House Inc. v. Board of Appeals, 282 N.E.2d 606, 609
(N.Y. 1972). Typically, the indoor shooting ranges do not
encounter as many zoning problems as do outdoor ranges. However, the expense
involved with an indoor range is quite substantial when compared with
an outdoor range, thus making indoor ranges less financially attractive.
With an ever increasing population, there is a demand for more building
of residential neighborhoods. It seems inevitable that shooting ranges
and residential neighborhoods must live amongst each other. Hence, there
will be more of a dependency on zoning laws to ensure a peaceful cohabitation.

General Principles
of Nuisance Law

The general
premise of the law of nuisance regulation is that no person is absolutely
free to perform acts that others find offensive or that interfere with
others' rights to safety and the quiet enjoyment of their own property.
As noted in one case, "literally, nuisance means annoyance, and in
its broadest sense, it is that which annoys or gives trouble or vexation,
that which is offensive or noxious; anything that works hurt, inconvenience
or damage. The term signifies in law such a use of property or such a
course of conduct as, irrespective of actual trespass against others or
of malicious or actual criminal intent, transgresses the just restrictions
on use or conduct which the proximity of other persons or property in
civilized communities imposes on what would otherwise be rightful freedom."

Nuisance activities
can be classified in one of three ways: those which are considered nuisances
in themselves or nuisances per se; those which are not nuisances per se,
but which become nuisances because of the place where the activity is
conducted; and those activities which in their nature may be nuisances,
but as to which there may be honest differences of opinion.

To be considered
a nuisance per se, the activity must of itself and by reason of its inherent
capabilities cause injury or threaten the enjoyment of life or property
of others, or be restricted by statute. It has been held that trap and
skeet shooting ranges are not a nuisance per se when conducted in either
rural or suburban areas, Schneider v. Clothier, 52 Lanc. L. Rev. 113 (1950),
although this cannot be declared a universal view.

An activity
that is classified as a nuisance because of it S location is an activity
that is lawful in its own right, but which becomes objectionable because
of the location, circumstances or surroundings where it is conducted.
In what constitutes a nuisance, courts have placed a paramount importance
on the time and locality factors of shooting ranges. In Oak Haven Trailer
Court, Inc. v. Western Wayne County Conservation Association, 3 Mich.
App. 83, 141 N.W.2d 645 (1966), The residents of a trailer park complained
of noise from a gun club. The club was located in a rural area,
and residents of the trailer park were the only persons complaining of
the noise. The court, in holding for the gun club, stated "that which
might be actionable or abateable in one place or locality might not be
such in another. The oft quoted observation of the Supreme Court comes
to mind here: nuisance may be merely the right thing in the wrong place,
like a pig in the parlor instead of the barnyard."

Another description
of nuisance activity distinguishes between public and private. In this
context the difference lies in the scope of those affected by the
acts. If the public at large is affected, the activity is classified as
a public nuisance. Such was the situation in which dust from the road
to the defendants' gun club caused a nuisance to the public at large.
Davie v. Izaak Walton League of America, 717 P.2d 984 (Colo. App. 1985).
If only a limited number of people are affected, such as only one person
or a few people, the activity is considered a private nuisance. In this
context, the activities differ only in the extent or scope of the detrimental
effect.

In a case where
neighbors of a shooting range brought a private nuisance action against
a gun club because of the noise, the court held it to be a private nuisance
and stated "the law is clear that where a trade or business as carried
on interferes with the reasonable and comfortable enjoyment by another
of his property, a wrong is done to a neighboring owner for which an action
lies at law or equity. In such cases it makes no difference that the business
was lawful and one useful to the public and conducted in the most approved
method." Edmonds v. Murphy, 573 A.2d 853 (Md. App. 1990).

In some contexts
a nuisance may be both a public and private nuisance. Such an activity
may injure many people as a public nuisance, but also create a special
injury to select individuals beyond those injuries suffered by the general
public. To those suffering special injury, the activity becomes a private
nuisance, while those who suffer the general injury consider it to be
a public nuisance. Those activities which are both public and private
nuisances are generally referred to as a mixed nuisance.

A suit to abate
a nuisance by means of an injunction generally requires that without the
intervention of the injunction, the activity will be ongoing, and irreparable
harm without a remedy compensible in money damages will occur. Injunctions
to abate such activity are granted only where necessary and where caution
and judgment indicate to the trial judge that the exercise of the court's
discretion to grant the injunction is warranted by clear and convincing
grounds. Stated another way, an injunction will be issued only where there
is no adequate remedy at law.

In defending
an action, disproving any of the elements needed to demonstrate an actionable
nuisance activity are available to a defendant. Another defense that has
been successful are those that argue that a neighbor's claim of private
nuisance must yield to activities, the conduct of which are in the public
interest, or a matter of public necessity. In the case where opponents
wanted to close down a shooting range because of noise, the court held
that the approval of an unclassified use permit by the zoning authority
was reasonable; the facility would fulfill a recreational need in the
community

in a manner compatible
with the surrounding neighborhood. The zoning board found that, "if
this use were not permitted to exist in a residential area the end result
is that in a total urbanization of this kind all recreation
would be excluded because no property could be used in such a manner.
The Board does not feel that urbanization of society should be permitted
to destroy kinds of recreation, such as in the instant case.""
Evergreen State Builders, Inc. v. Pierce County, 9 Wash. App. 973, 516,
P.2d 775, 778 (1973).

A final argument
raised in a challenge to continuing activity is that conducting an activity
over a period of time creates the right to continue it, even if it is
later held to be a nuisance activity. This argument is a philosophical
parallel to prescriptive rights granted under the concept of adverse possession;
however, few courts have recognized this concept in support of a defendants
right to continue a public nuisance activity. In the case of private nuisance
activity, however, the argument parallels the concept of "laches"
and has met some measure of acceptance and recognition if all the required
elements of adverse possession have been met.

In summary,
it has been generally accepted that shooting ranges are not in and of
themselves nuisances. To determine a nuisance, courts rely heavily on
time and location factors regarding the shooting range. Nuisance can be
both public and private, the former affecting the public in general, whereas
in the latter only a limited number of people are affected. The most common
way to abate a nuisance is by an injunction, which if permanent could
totally close a shooting range. Finally, some defenses to a nuisance action
include the fact that the activity benefits a public necessity, and the
"first in time, first in right" argument, both of which
have been very effective in some courts, yet, have held little weight
in others.

Range Protection
Statutes

A minority
of states have taken the legislative initiative, passing statutes to protect
shooting ranges from civil action and criminal prosecution in matters
relating to noise or "noise pollution" resulting from operations
of the range.

Most of these
statutes are very broad. For example, Pennsylvania's statute calls for
immunity from all criminal and civil action in any matter relating to
noise or noise pollution. Furthermore, it adds that no court shall enjoin
any shooting range on the basis of noise. 35 PA. CONS. STAT ( 450.1 (1985).
Another broad statute is Minnesota's, which prevents any local government
from regulating the noise and location of a shooting range. Minn. Stat.
(116.07 (1978). Missouri also has a broad range protection statute, which
calls for immunity from both civil and criminal liability with limited
protection for ranges that may open in the future. Mo. Rev. Stat. 9 537.294
(1988).

Other states
are not as broad. New Hampshire calls for the noise to be in compliance
with the state laws, and also allows local governments to regulate the
noise. N.H. Rev. Stat. Ann. (159-B (1990). Additionally, Maryland provides
immunity as long as shooting occurs between 9:00 am and 10:00 pm and only
if the gun club stays on the same parcel of land as they occupy at the
passage of the statute. Md. Ann. Code. art. 4 (3-401. Whether narrow or
broad, these statutes have worked greatly to protect the owners of shooting
ranges from noise liability.

State Noise Control
Laws

State noise
laws are an outgrowth of the Federal Noise Control Act of 1972 (49 U.S.C.
(( 4901 et seq.) and the tremendous increase in interest regarding noise
abatement and control which the Act has precipitated. There are generally
three main types of noise control laws. The first is a codification of
the common law of nuisance. The Washington State Noise Control Act of
1974 is a prime example of this first type. It states:

"The department
is empowered as follows: (1) The department after consultation with state
agencies expressing an interest therein, shall adopt, by rule, maximum
noise levels permissible in identified environments in order to protect
against adverse affects of noise on the health, safety, and welfare of
the people, the value of property and the quality of environment."
Rev. Code of Wash. 70 ( 70, 107 (1974).

The Delaware
Noise Control Act is another example of a common law statute. It states:

"Noise disturbance
means any sound which (1) endangers or injures the safety or health of
humans or animals (2) annoys or disturbs a reasonable person of normal
sensitivities, or (3) jeopardizes the value of property and erodes the
integrity of the environment. Del. Code Title 7 ( 71. Thus, these types
simply adopt their common law into statutes.

The second
type of noise control statutes are the newer type, where special standards
have been set up. Here a specified decibel level is used. The decibel
is a unit used to express the magnitude of a change in sound level. The
most common approach is to break down an area into zones and then set
maximum decibel levels for each zone for both day and night. Colorado
has taken such an approach:

Table 1. Colorado
noise control statute broken down into zones and decibel levels.a

Zone 7:00 am to next
7:00 pm to next

7:00 pm
7:00 am

Residential 55 dB
(A) 50 dB (A)

Commercial 60 dB
(A) 55 dB (A)

Light Industrial
70 dB (A) 65 dB (A)

Industrial 80 dB
(A) 75 dB (A)

aCol. Rev. Statutes,
Title 25 ( 12 (1973).

The final
type of noise control statute is the kind set up and enforced by a regulatory
authority. In this type we have a commissioner of the given regulatory
authority as the author of the substantive standards adopted pursuant
to the statute. An example of this type is Alabama's regulations:

"By authority
vested in me as commissioner of Conservation and Natural Resources by
the Code of Alabama 1975, ( 33-5-28, I do hereby establish and promulgate
the following regulation which has the force and effect of law. The penalty
for violating this regulation is provided for by the Code of Alabama 1975
( 33-5-3511 Marine Police Regulations, 79-MP-2 (1979); and Code of Alabama,
Title 33 Ch. 5, Navigation and Watercourses, ( 33-5-23.

The increase
in reliable monitoring equipment available to local governments, coupled
with definitive standards incorporated into local noise control ordinances,
should result in ordinances that are more easily enforceable than in the
past.

APPENDIX

Digest of State Range
Protection Laws

Illinois Statutes,
Title 111-1/2% ( 1025 (1970).

However, no
Board standards for monitoring noise or regulations prescribing limitations
on noise emissions shall apply to skeet, trap or shooting sports clubs
chartered and operational prior to January 1, 1975, which are situated
in the same location in which they were situated prior to January 1, 1975
or to any sanctioned motor racing event at a motor racing facility in
existence prior to January 1, 1975, or any other sporting event sanctioned
by the American Athletic Union, the National Collegiate Athletic Association,
or the Illinois High School Association.

Maryland Statutes,
Title 4, ¤ 3-401 (5)(i).

The sound level
limits and noise control rules and regulations adopted under this subsection
may not prohibit trapshooting, skeetshooting, or other target shooting
between the hours of 9 am and 10 pm on any range or other property of
a shooting sports club that is chartered and in operation as of July 1,
1983. However, this prohibition does not apply if the sports shooting
club moves to a parcel of land that is not contiguous to the location
of the club on July 1, 1983.

Minnesota Statutes
( 116.07, subdiv. 2a., [EXEMPTIONS FROM

STANDARDS].

No standards
adopted by any agency for limiting levels of noise in terms of sound pressure
which may occur in the outdoor atmosphere shall apply to skeet, trap or
shooting sports clubs. Nothing herein shall prohibit a local unit of government
from regulating the location and operation of skeet, trap or shooting
sports clubs.

Missouri Statutes,
Title 537.294 (1988).

As used in
this section, the term "firearm range" means any rifle, pistol,
silhouette, skeet, trap, blackpowder or other similar range in this state
used for discharging firearms in a sporting event or for practice or instruction
in the use of a firearm, or for the testing of a firearm.

All owners
of firearm ranges in existence on the effective date of this section shall
be immune from any criminal liability arising out of or as a consequence
of noise or sound emission resulting from the normal use of any such firearm
range. Owners of such firearm ranges shall not be subject to any action
for public or private nuisance or trespass and no court in this state
shall enjoin the use or operation of such firearm ranges on the basis
of noise or sound emission resulting from the normal use of any such firearm
range. The term "normal use" of a firearm range, as used in
this subsection, means the average level of use of the firearm range during
the twelve months preceding the effective date of this act.

All owners
of firearms ranges placed in operation after the effective date of this
section shall be immune from any criminal liability and shall not be subject
to any action for public or private nuisance or trespass arising out of
or as a consequence of noise or sound emission resulting from the normal
use of any such firearm range, if such firearm range conforms to any one
of the following requirements:

1) Any area from
which any firearm may be properly discharged is at least one thousand
yards from any occupied permanent dwelling on adjacent property;

2) Any area from
which any rifle or pistol may be properly discharged is enclo enclosed
by a permanent building or structure that absorbs or contains the sound
energy escaping from the muzzle or firearms in use; or

3) If the firearm
range is situated on land otherwise subject to land use zoning, the firearm
range is in compliance with the requirements of the zoning authority
regarding the sound deflection or absorbent baffles barriers, or other
sound emission control requirements.

159-B:l Exemption.
Notwithstanding the provisions of RSA 644.2 9 III(a) or any other law
to the contrary, all owners of rifle, pistol, silhouette, skeet, trap,
blackpowder or other similar ranges in the state shall be immune from
any civil action or criminal prosecution in any matter relating to noise
or noise pollution resulting from the ranges, provided that the owners
Of the ranges are in compliance with any applicable noise control laws
or ordinances in existence at the time construction of the range was approved.

159-B:2 Nuisances
and Injunctions. The owners of the ranges shall not be subject to any
action for nuisance, and no court in the state shall enjoin the use or
operation of the range on the basis of noise or noise pollution, provided
that the owners are in compliance with any noise control laws or ordinances
in existence at the time construction of the range was approved.

159-13:3 Exemption
from State Standards; Local Regulation Permitted. No standards in rules
adopted by any state agency for limiting levels of noise in terms of decibel
level which may occur in the outdoor atmosphere shall apply to the ranges
exempted from liability under the provision of this chapter. Nothing in
this chapter shall prohibit a town or city from regulating the location
and operation of a shooting range after the effective date of this act.

Pennsylvania CONS.
STAT. 35 5 450.1 (1985).

All owners
of rifle, pistol, silhouette, skeet, trap, blackpowder or other similar
ranges in this Commonwealth shall be exempt and immune from any civil
action or criminal prosecution in any matter relating to noise or noise
pollution resulting from the ranges, provided that the owners of the ranges
are in compliance with any applicable noise control laws or ordinances
extant at the time construction of the range was initiated.

Section 2. Nuisances
and Injunctions

The owners
of the ranges shall not be subject to any action for nuisance and no court
in this Commonwealth shall enjoin the use or operation of the ranges on
the basis of noise.

Range Resources

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